256 F.

2d 59

James H. HALL, Appellant,

v.
C. H. LOONEY, Warden, United States Penitentiary,
Leavenworth, Kansas, Appellee.
No. 5830.

United States Court of Appeals Tenth Circuit.

May 29, 1958.

Kenneth C. Schoen, Denver, Colo., for appellant.

A. I. West, Asst. U.S. Atty., Topeka, Kan. (William C. Farmer, U.S. Atty.,
Topeka, Kan., and Milton P. Beach, Asst. U.S. Atty., Kansas City, Kan.,
on the brief), for appellee.
Before MURRAH, PICKETT and LEWIS, Circuit Judges.
PER CURIAM.

James H. Hall, an inmate in the United States Penitenitary at Leavenworth,

Kansas, appeals from an order of the United States District Court for the
District of Kansas, discharging a writ of habeas corpus and dismissing the
petition.

The record discloses that on April 2, 1954 the petitioner, while in the custody
of the Alabama State authorities, was sentenced in the United States District
Court for the Northern District of Alabama to be imprisoned for a period of
three years, which sentence was to begin upon petitioner's due and legal release
from the custody of the State of Alabama. Petitioner was thereafter sentenced to
serve a two year term by a State Court of Alabama. Before the completion of
the Alabama sentence the petitioner escaped. He was arrested by Federal
authorities in the Western District of Kentucky in 1957 for a violation of
Federal Statutes. The petitioner was sentenced on April 9, 1957 in the United
States District Court for the Weastern District of Kentucky to imprisonment for
a term of five years for this violation. The sentence made no mention of the
Alabama State Court sentence, but provided that it should run concurrently with

the Alabama Federal Court sentence. The crux of petitioner's contention is that
he is unlawfully held by the Warden because, under the terms of the Federal
Court sentences, neither of them could begin to run until after the Alabama
State Court sentence had been satisfied. This is an ingenious argument, but
without merit.
3

The Kentucky Federal Court, with the physical possession and custody of
petitioner, had the right to prosecute and sentence him for offenses committed
within its jurisdiction. In attempting to permit the petitioner to serve the Federal
sentences concurrently, it was provided that the Kentucky Federal Court
sentence should be served concurrently with the Alabama Federal Court
sentence. There is no showing that the Alabama state authorities objected to this
procedure, and they apparently consented to it as they lodged a detainer with
the Warden of the United States Penitentiary at Leavenworth. Furthermore, in
the absence of any showing that the Alabama state authorities objected to the
exercise of the Federal jurisdiction in Kentucky, it is presumed that they
consented thereto. Hebert v. State of Louisiana, 272 U.S. 312, 47 S.Ct. 103, 71
L.Ed. 270, 48 A.L.R. 1102; Ponzi v. Fessenden,258 U.S. 254, 42 S.Ct. 309, 66
L.Ed. 607; Rawls v. United States, 10 Cir.,166 F.2d 532, certiorari denied 334
U.S. 848, 68 S.Ct. 1498, 92 L.Ed. 1771; Wall v. Hudspeth, 10 Cir., 108 F.2d
865.

When a person is lawfully in the custody of one sovereign on a criminal charge,

he remains exclusively in the jurisdiction of that sovereign until its jurisdiction
has been exhausted. Wall v. Hudspeth, supra. But, the sovereign having the
prior jurisdiction and the right to custody may waive that right and permit
another sovereign to proceed with its prosecution and the execution of sentence.
Strand v. Schmittroth, 9 Cir., 251 F.2d 590, certiorari denied 355 U.S. 886, 78
S.Ct. 258, 2 L.Ed.2d 186; Stamphill v. United States, 10 Cir., 135 F.2d 177. In
Hayward v. Looney, 10 Cir., 246 F.2d 56, 57, we said:

'Either the Federal or a state government may voluntarily surrender its prisoner
to the other without the consent of the prisoner. Whether jurisdiction and
custody of a prisoner shall be retained or surrendered is a matter of comity and
is to be determined by the sovereign having custody.

'If the prisoner has violated the law of both sovereigns, he is subject to
prosecution by both and he may not complain of or choose the manner or order
in which each sovereign proceeds against him.

'While the record before us may not affirmatively show that the Attorney

General of the United States authorized the return of Hayward to the state
authorities, there is a presumption that public officers will act lawfully and it
will be presumed that the return of Hayward to the state authorities was duly
authorized, absent an affirmative showing to the contrary.'
8

As the Alabama state authorities waived the right to the custody of the
petitioner and consented to the action of the Kentucky Federal Court, the
Alabama Federal Court sentence became effective and the petitioner is lawfully
held for the concurrent service of the two Federal Court sentences.

Affirmed.